Can North Dakota discipline an out-of-state lawyer who practices there, and must local counsel report suspected misconduct?

Short answer The committee said the out-of-state lawyer was subject to North Dakota discipline for practice there; local counsel had no duty to report to California but might have a Rule 8.3 duty to initiate North Dakota proceedings.
Bar
SBAND
Issued
February 23, 1998

Apply this to your situation

This page answers the general question as of 1998. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under North Dakota Rule for Lawyer Discipline 1.2(B), a lawyer who acts in good faith and in reasonable reliance on a written opinion of the association's ethics committee is not subject to sanction for the conduct the opinion addresses. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A California lawyer participated in a North Dakota arbitration and allegedly offered not to represent further claimants against a North Dakota corporation if it paid the lawyer and retained the lawyer as a consultant. The committee did not decide whether that proposed conduct violated a rule.

It concluded that an out-of-state lawyer practicing in North Dakota was subject to North Dakota discipline for that activity and, to that extent, had to comply with the state's professional conduct rules. North Dakota Rule 8.3 did not require the requesting lawyer to report to California authorities. A report under North Dakota Rule 8.3 might be required, but the committee declined to decide finally whether the requester had the requisite knowledge and facts.

Currency note

This opinion was issued in 1998, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement.

Common questions

Q: Did the committee find the California lawyer committed misconduct?

A: No. It discussed possible application of Rule 1.8(b) but did not make a final violation finding on the described facts.

Q: Did the requesting lawyer have to report to California?

A: No. The committee found no North Dakota rule requiring a report to California disciplinary authorities.

Q: Was a North Dakota report definitively required?

A: No. The committee said Rule 8.3 might require it and the facts strongly suggested a duty, but it declined a final determination for this requester.

Background and rules framework

North Dakota Rule 8.5(b) supplied disciplinary authority over an eligible out-of-state lawyer practicing in the state. The opinion discussed Rule 1.8(b) on use of client information and Rule 8.3(a) on reporting a known violation that raises a substantial question about honesty, trustworthiness, or fitness.

Citations and references

Rules of Professional Conduct:

  • North Dakota Rule 8.5(b).
  • North Dakota Rule 1.8(b).
  • North Dakota Rule 8.3(a).

Cases:

  • Elder v. Metropolitan Freight Carriers, Inc., 543 F.2d 513 (3d Cir. 1976), local rules and pro hac vice practice.
  • In re Fletcher, 655 N.E.2d 58 (Ind. 1995), rules applicable to a visiting lawyer.

Other opinions cited:

  • North Dakota Opinions 93-06 and 96-14, limits on committee assessment of a reporting duty.
  • Mississippi Bar Informal Opinion FIO 221, reporting possible misconduct by an out-of-state lawyer.

See also

Source

Original opinion text

Full opinion text unavailable from the official source; see the linked source above for the complete text.

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